At first glance, the Court’s decision in Kiobel appears to portend a significant restriction on Alien Tort Statute jurisdiction—even for suits that allege torture, genocide, or another of what the Court in Sosa called the “modest number of international law violations” cognizable under the ATS, those with “definite content and acceptance among civilized nations” equal to that of the “historical paradigms” (such as piracy and violation of safe conducts) familiar in 1789.

And perhaps that will, indeed, be Kiobel’s legacy.  But perhaps not.  What’s most striking about the collected opinions is that the Justices themselves apparently do not think the decision will necessarily cut off ATS claims in such a comprehensive manner.  Justice Kennedy writes that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute”; and even Justices Alito and Thomas acknowledge, with evident regret, that the Court’s opinion “obviously leaves much unanswered” (emphasis added).

What is the “much” that the Court does not answer?  The “number” of “significant” questions that remain unresolved?  If only it were as “obvious[]” as Justice Alito suggests.

To begin with, what legal propositions is it fair to say the Kiobel decision does establish?  Well, it is now settled that where the alleged conduct in question occurred wholly abroad, the mere fact that a corporate defendant has an office in the United States and shares that are traded on a U.S. exchange is insufficient to establish ATS jurisdiction, unless and until Congress amends the statute.  (All nine Justices agree that this is the case where only aiding and abetting is alleged; and I think it’s safe to say that a majority would rule the same way even where the defendant corporation is alleged to be the principal tortfeasor.)

By contrast, all nine Justices agree that there is ATS jurisdiction when, in Justice Alito’s words, “the domestic conduct is sufficient to violate an international law norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations.”

But what about cases falling somewhere in between these polar ends?

Tom Lee describes some hypothetical cases that might not be covered by the Kiobel holding, such as where the conduct occurred in a “failed state”; but I doubt such rare hypotheticals are what the Justices had foremost in mind.  (It’s hard to imagine these are the “significant” questions that the decision “obviously” does not answer.)

I can think of at least three more familiar types of cases that the Justices might have had in mind as those that remain “unresolved” by Kiobel:

(i) Cases alleging Sosa-sufficient torts committed overseas by U.S. defendants;

(ii) Cases such as Filartiga, where a foreign defendant uses the U.S. as an effective “safe harbor,” thereby preventing other states from bringing him to justice;

and

(iii) Cases in which the defendant is alleged to have engaged in conduct in the United States that contributed materially to the violation of a Sosa-sufficient law of nations norm (such as providing active assistance to torture), but where that conduct in the U.S. was not itself sufficient to establish the violation.  (I am not including in this category cases alleging aiding and abetting predicated solely on knowledge by a U.S. corporation of a foreign subsidiary’s bad acts.  Although even that case is not technically resolved by Kiobel, I think it’s safe to predict the Court would not recognize such a claim, most likely on the theory that such general knowledge, and failure to stop the tort, does not satisfy the scienter requirement for a Sosa-qualified claim.)

We can say with some confidence that at least four current Justices (Breyer, Ginsburg, Sotomayor and Kagan) would recognize ATS jurisdiction in many or all cases in these three categories . . . and that, by contrast, two Justices (Alito and Thomas) would not.  What we do not know is whether and in what circumstances one or more of the other three Justices — or future Justices — would recognize ATS jurisdiction in such cases.

The question going forward, then, is whether such claims can satisfy the standard the Chief Justice articulates in the key, final paragraph of the Court’s opinion:  Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application”?

(more…)

Brennan’s speech, given today at the Wilson International Center, can be found here.  I don’t have time to blog about it now; but in any event, it is more detailed than the previous Administration statements on the same subject and I think it largely speaks for itself.  Substantive comments welcome.

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002]

There was, of course, a great deal of international opinion offered concering the legality of the Israeli strike on the Osirak reactor in 1981.  But as two recent articles stress — see this piece by Georgetown student Leah Schloss and this piece by Australian professor Andrew Garwood-Gowers [which can also be found here if that link doesn't work] – there has been virtual silence from the international community about the 2007 strike on the  Syrian nuclear facility at al-Kibar.

Is that account accurate?  I assume that because Israel has never acknowledged its purported involvement, it has also never offered an international law defense of the operation.  (True?)  Is it also the case that virtually no other nations have said anything one way or the other about its legality?

If so, what, if anything, does the 2007 operation portend for the development of the law of self-defense?  I’d welcome reactions to the Schloss and Garwood-Gowers articles and the question more generally, particularly from those who do not assume that all anticipatory strikes violate the Charter.

[UPDATE:  I'd also welcome comments on a broader question epitomized by this example--one that it appears will be increasingly relevant as time goes on:  What role, if any, can covert actions play in the creation or evolution of custom if no nation acknowledges the action in question and therefore there is no agreed upon version of the relevant facts and arguable legal justifications?  Does the answer to this question depend upon the nature, if any, of objections to the action?  What if there comes to be a generally accepted view of what "really happened," based on leaks and the like, but still no official account or acknowledgement, let alone adjudication?]

Thanks in advance.

By Marty Lederman and Steve Vladeck*

Section 1021 of the NDAA and the Laws of War

In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that many critics have predicted–in particular, that it will not affect the unresolved question of whether the 2001 Authorization for Use of Military Force (AUMF) would authorize a future President to place a U.S citizen or resident who is apprehended in the United States in long-term military detention. (The issue is moot during President Obama’s tenure, since “it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be,” and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”  As the President reiterated today, “my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.”)

In this post, we will address David Cole’s concerns about the relationship between the AUMF detention authority and the laws of war. This has the potential to be a very important question—indeed, it’s the one important substantive issue that has engendered an interpretive dispute among the judges on the D.C. Circuit.  In short, and as we explain in more detail below, the Obama Administration has advanced the view that the AUMF detention authority should be construed as limited and informed by the laws of war—a reading that is supported by the rulings of most habeas judges.  But two judges on the court of appeals have insisted to the contrary that it would be “both inapposite and inadvisable” for courts to look to the laws of war when construing the Executive’s detention authority under the AUMF—a view that has engendered some confusion in recent habeas cases.

How does section 1021 of the NDAA affect this dispute?

By Marty Lederman and Steve Vladeck*

Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law.  One of the major disputes concerns whether and how the NDAA might alter the status quo.  In this post, we’ll try to synthesize the competing views offered by David Cole and Raha Wala, who remain quite critical of the provisions because of the changes they possibly presage, with those of Bobby Chesney and Ben Wittes, who argue that the NDAA doesn’t do nearly as much as its critics claim to affect the Executive’s current authorities and practices.  As we explain, there’s considerable merit to both sets of arguments.  Perhaps the most important impact of the NDAA, however, may be with respect to a question that has received comparatively little attention–namely, the effect of the laws of war on the Executive’s military detention authority.  In a companion post, we take a closer look at that important question.

The Bad

David Cole is surely correct that Subtitle D (“Counterterrorism”) of the NDAA contains some very troubling provisions—especially sections 1026 and 1027, which continue the deeply unfortunate and counterproductive authorities in current law prohibiting the use of funds to build a facility in the U.S. to house GTMO detainees and to transfer any such detainees to the U.S. for any reason, including criminal trial; and section 1028, which continues the current statutory requirement that the Secretary of Defense must make onerous certifications regarding the receiving nation’s security measures before any GTMO detainee can be transferred to another country.  These provisions will continue to prevent the closure of the detention facility at Guantánamo, notwithstanding the President’s view, which we share, that “the prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.”

Moreover, and as David further notes, section 1022 purports to establish a presumption in favor of indefinite military detention, rather than criminal arrest and prosecution, for some future foreign al-Qaeda suspects.  In the President’s words, it is in this respect “ill-conceived and will do nothing to improve the security of the United States,” and “is unnecessary and has the potential to create uncertainty.”  Fortunately, amendments adopted late in the legislative process—particularly a change to the section 1022 waiver provision and the addition of a new provision that “[n]othing in [section 1022] shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person”—will, we think, ensure that section 1022 is mostly hortatory, and will in practice allow the President to adhere to his commitments that “suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be”; that “our military does not patrol our streets or enforce our laws—nor should it”; and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”  As the President wrote today, he will construe section 1022 to afford “the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.”  (We would also note that, under a plain-language reading, section 1022 would not even cover persons apprehended in the U.S. by the FBI or other law-enforcement officials:  That provision applies only to a person “who is captured in the course of hostilities authorized by the AUMF”—and in the case of a domestic FBI or other law-enforcement arrest, presumably neither the arresting entity nor the individual would be engaged in “hostilities authorized by the AUMF.”  On this reading—which which is fortified by the language clarifying that 1022 does not affect FBI authorities—the statute could only apply in the first instance to someone captured by a U.S. agency acting pursuant to the AUMF, which in effect would mean apprehensions by the armed forces overseas.)

Even so, enactment of section 1022, ambiguous and potentially toothless though it may be, is not without costs.  It might well convey to the world that the American legislature views military detention as an unremarkable, even preferred, option in some terrorism cases, thereby blurring the important message the President has been endeavoring to convey, through word and practice, that “[t]he strong preference of this Administration is to accomplish [incapacitation of persons who are threats to the American people] through prosecution.”  Moreover, as Raha Wala points out, the very existence of section 1022 might give a future Administration a slight measure of political cover if it decides to reverse President Obama’s policy and begin to detain in military custody persons such as another Abdulmutallab, who are captured in the United States.  All in all, then, section 1022 is an unwelcome provision, even if it will (as we hope) have little or no practical impact on executive practice.

The Good

It is also worth emphasizing, however, that the Obama Administration, civil liberties and human rights organizations, and some members of Congress worked tirelessly and quite effectively to improve the final bill dramatically from the versions the Senate and (especially) the House had earlier passed. Because of those efforts, Subtitle D of the NDAA is not nearly as problematic as many critics have suggested.  Indeed, the final bill actually contains a handful of provisions that improve upon current law, and one—which will be our focus here—that helps to resolve an important interpretive debate about whether the Executive’s detention authority under the 2001 Authorization for Use of Military Force (AUMF) should be informed and limited by the laws of war.

The New York Times editorial on the NDAA is, unfortunately, representative of many of the false alarms being sounded about the legislation.  The Times complains that the NDAA “ban[s] . . . spending any money for civilian trials for any accused terrorist,” “strip[s] the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists,” and “give[s] future presidents the authority to throw American citizens into prison for life without charges or a trial.”

If this were an accurate description of the final legislation, it would be even more extreme than the House-passed version, which the President’s senior advisers recommended that he veto.  But the bill the President just signed does none of these things.

The President signed the NDAA today, and issued the following signing statement.  Steve Vladeck and I will shortly post on the details of the bill — what’s bad about it; how it has been widely misconstrued to be much worse than it is, in fact; and how in at least one important respect it marks an important resolution of an outstanding question involving the interplay of the AUMF detention authority and the laws of war.

Statement by the President on H.R. 1540

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe…

The first part of John Brennan’s speech, as I explain below, is an explication of the Administration’s understanding of the U.S. armed conflict with al-Qaida and its co-belligerents, the legal constraints governing our use of force, and the self-imposed parameters of the government’s use of force outside of “hot battlefields.”  That is to say, it is a description of the way in which the U.S. can and does use military force to counter one part of the terrorist threat–that presented by al-Qaida and other groups associated with al-Qaida with which we are engaged in armed conflict.

The remainder of the Brennan speech is largely devoted to arguing that it is not only unhelpful and inaccurate, but in fact counterproductive, to view the entirety of counterterrorism efforts through the lens of the use of military force, of “war.”  For this reason, the Administration is strongly opposed to several current efforts in Congress to require the use of military means in contexts that would be contrary to historical practice (including in the Bush Administration), where other means have been and continue to be much more appropriate and effective.  I can’t put this point much better than Juliette Kayyem recently made it, in a column that presages the details that John Brennan described last night:

[O]n the 10th anniversary of 9/11, there has been much talk of how the war on terror, at home and abroad, has kept us safe. . . .  This telling requires a sleight of hand and a lot of forgetfulness.  It equates the Obama administration’s use of the military through drone attacks and special operations as an extension of Bush’s “war.”  But narrowly targeted military strategies to combat specific threats are not the same as the global war on terror that we lived under during the Bush administration.

So, it’s time to set the record straight:  The war on terror is over.  To still call the effort to dismantle, kill, and disrupt Al Qaeda and its affiliates the war on terror is to treat the United States and its government as frozen in time.  It assumes that there has been no learning, no growth, no recognition of mistakes, no priority shifts, no advancement in capabilities. It assumes time has stood still.

Brennan’s speech is largely devoted to sounding similar themes.  ”I am deeply concerned,” he said, “that the alternative approach to counterterrorism being advocated in some quarters would represent a drastic departure from our values and the body of laws and principles that have always made this country a force for positive change in the world.  Such a departure would not only risk rejection by our courts and the American public, it would undermine the international cooperation that has been critical to the national security gains we have made.  Doing so would not make us safer, and would do far more harm than good.  Simply put, it is not an approach we should pursue.”

With particular respect to the matters of detention and prosecution, these are the highlights, which are hardly in need of elaboration or explanation…

In his speech last evening, Deputy National Security Advisor John Brennan clarified and strengthened a number of important points that the Obama Administration had previously articulated or suggested, and helpfully tied them together to provide a more comprehensive account of the President’s counterterrorism approach, particularly with respect to the U.S. commitment, emphasized by Brennan, on adherence to the rule of law and respect for international law norms.  In this post, I’ll focus on his remarks about the use of force.  In the next post, I’ll briefly discuss some of the more important aspects of the speech dealing with detention and prosecution.

It’s evident that a principal purpose of this section of the speech concerning the use of force, especially outside the “hot battlefield” of the Af/Pak theater, is to further distance the Administration from the “Global War on Terror” framework that infected U.S. characterizations of our counterterrorism strategy shortly after September 11th.  ”[W]e are at war with al-Qa’ida,” emphasizes Brennan–not with all terrorists the world over.  (Brennan explains that our “ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense.  This is not news, or controversial.  See, e.g., U.N. Resolution 1373 (Sept. 28, 2001).  There is no such self-defense rationale available as a matter of the jus ad bellum with respect to all international terrorist groups.)

But what about Brennan’s references, early in his speech, to al-Qaida “adherents” and “affiliates”?  Although Brennan explains that “adherents” of al-Qaida–including “individuals . . . with little or no contact with the group itself”–have become a serious national security challenge because they can and do conduct attacks in the United States, the U.S. is not at war with each of them.  That is to say, the U.S. is not resorting to the use of military force against them.  Brennan also points to the danger of al-Qaida “affiliates”; but he does not suggest that the U.S. practice is to use military force against all al-Qaida “affiliates,” either.  As the Administration’s recent National Strategy for Counterterrorism explained, “‘Affiliates’ is not a legal term of art.  Although it includes Associated Forces [i.e., cobelligerents of al-Qaida and the Taliban engaged in the conflict against the U.S., against whom force may be used], it additionally includes groups and individuals against whom the United States is not authorized to use force based on the authorities granted by the Authorization for the Use of Military Force. . . .  The use of ‘Affiliates’ . . . is intended to reflect a broader category of entities against whom the United States must bring various elements of national power, as appropriate and consistent with the law, to counter the threat they pose.”  In other words, military force is authorized against al-Qaida, the Taliban and their cobelligerents.  But the increasing threats from groups and individuals who are more loosely inspired by or affiliated with al-Qaida will appropriately be countered using other tools of counterterrorism strategies, apart from the use of force.

Brennan then moves on to a matter about which “there is some disagreement”–namely, “the geographic scope of the [armed] conflict”…

John Brennan just finished delivering this speech at the Harvard Law School.  I believe it is the most comprehensive single statement of the Obama Administration’s policies and practices with respect to al Qaeda and other terrorist threats.  There’s a lot of material here that will be of interest to OJ readers.  I will use boldface to identify what seem to me to be the highlights of the speech:
September 16, 2011

Remarks of John O. Brennan – As Prepared for Delivery
Assistant to the President for Homeland Security and Counterterrorism
Program on Law and Security
Harvard Law School
Cambridge, Massachusetts
Friday, September 16, 2011

“Strengthening our Security by Adhering to our Values and Laws”

As Prepared for Delivery –

Good evening.  Thank you, Dan [Meltzer], for your very kind introduction and for your service to our nation, in both the judicial and executive branches.  At the White House, Dan helped us navigate some of the most complex legal issues related to our efforts to keep the American people safe.  I know that President Obama is grateful for his service.  And I am grateful for having had the opportunity to sit through his many law tutorials during national security meetings in the White House Situation Room.  I dare say that those tutorials were a tad less expensive than what some of you currently are paying for his pearls of wisdom.

It’s a pleasure to be here at Harvard Law School, and I want to acknowledge Dean Minow and members of the staff and faculty who are here tonight.

I especially want to thank Professor Gabriella Blum and Benjamin Wittes of the Brookings Institution for being the driving force behind your new Program on Law and Security.  The preservation of our national security and the laws that define us as the United States of America demand that we understand the intersection of the two—indeed, how they reinforce one another.  So I commend you for your efforts, we look forward to your contributions, and I very much appreciate the opportunity to be here for your inaugural event.

It’s wonderful to see a number of friends and colleagues who I’ve had the privilege to work with over many years—public servants who have devoted their lives to protecting our nation.  And let me say what a thrill it is to see so many students here this evening.  I just hope your choice to listen to me on a Friday night is not an indictment of your social lives.

Now, I am not a lawyer, despite Dan’s best efforts.  I am the President’s senior advisor on counterterrorism and homeland security.  And in this capacity—and during more than thirty years working in intelligence and on behalf of our nation’s security—I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe. It’s an appreciation of course, understood by President Obama, who, as you may know, once spent a little time here.  That’s what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.
Obviously, the death of Usama Bin Laden marked a strategic milestone in our effort to defeat al-Qa’ida.  Unfortunately, Bin Laden’s death, and the death and capture of many other al-Qa’ida leaders and operatives, does not mark the end of that terrorist organization or its efforts to attack the United States and other countries.  Indeed, al-Qa’ida, its affiliates and its adherents remain the preeminent security threat to our nation.

The core of al-Qa’ida—its leadership based in Pakistan—though severely crippled, still retains the intent and capability to attack the United States and our allies. Al-Qa’ida’s affiliates—in places like Pakistan, Yemen, and countries throughout Africa—carry out its murderous agenda. And al-Qa’ida adherents – individuals, sometimes with little or no contact with the group itself – have succumbed to its hateful ideology and work to facilitate or conduct attacks here in the United States, as we saw in the tragedy at Fort Hood.

Guiding principles

In the face of this ongoing and evolving threat, the Obama Administration has worked to establish a counterterrorism framework that has been effective in enhancing the security of our nation.  This framework is guided by several core principles…

[Marty Lederman is an Associate Professor of Law at Georgetown Law. He was was Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel from 2009 to 2010 and an Attorney Advisor in OLC from 1994-2002. This post is cross-posted at Balkinization.] Shortly after the recent military operation against Osama bin Laden, several [Anderson] voices [Belllinger] in the blogosphere expressed puzzlement that the Obama Administration (allegedly) had not provided a sufficiently thorough legal justification for the use of lethal force in Abbottabad. What is truly distinctive about the bin Laden case, however, is not the absence of legal explanation (after all, military forces rarely provide a public legal account when they use force against a particular target in an armed conflict), but instead that the Executive has been so unusually forthcoming about its views on the legal aspects of the bin Laden operation.

Then, on May 4th, the President’s chief spokesperson recited verbatim from an official statement designed specifically to address legal concerns that had begun to be heard. He emphasized that the operation was conducted in accord with the laws of war:

Q: The U.N.’s top human rights official said yesterday that she hoped the administration would release full details about the operation in order to settle any questions about whether it was legally justifiable. Does the administration feel or have any plans that it needs to say anything more about how the operation was carried out, the rules of engagement, to justify the action that happened on— MR. CARNEY: Well, let me address that question and I’ll—forgive me, I’m going to read so I’m very precise here. The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war.The operation was planned so that the team was prepared and had the means to take bin Laden into custody. There is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense. The operation was conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties. And if I might add, that was done at great risk to Americans.Furthermore, consistent with the laws of war, bin Laden’s surrender would have been accepted if feasible.

Finally, this past Thursday, State Department Legal Adviser Harold Koh provided a more detailed legal explanation here at Opinio Juris. From these and other Administration statements, I believe it’s possible to piece together in some detail the Administration’s views of the legal basis for the bin Laden killing (with one possible and understandable exception, noted below). In this post, I’ll try to canvass what appear to be the Administration’s views of relevant international and domestic law questions, respectively. Please note that I don’t intend this post to be a defense of each and every one of these legal propositions; my objective here is simply to enumerate in one convenient place the various legal rationales that the Administration can fairly be thought to have adopted—which I hope will, among other things, help to facilitate debate and discussion with respect to the distinct legal questions. Although my recent service in the Department of Justice, including at the time of Harold Koh’s earlier speech to the American Society of International Law, obviously provided me with some insight on these matters, my observations here are based entirely on public sources, and do not reflect any classified or other confidential information to which I might have had access when I worked at DOJ. And, of course, I do not here speak for the Administration. As noted below, in some instances I am merely speculating as to the Administration’s views; and in others, my suppositions might be mistaken, or might reflect views the Executive branch has not yet settled upon conclusively. As for international law… (Continue reading after the jump)

Well, Ben, much as I look forward to dining with you to discuss these issues further, I won’t take that bet, because I tend to agree with you that al-Marwalah could be detained under the laws of war themselves, if the evidence could fairly be read, as you suggest, to indicate that he was engaged in combat against coalition forces under the direction of the Taliban. Such detention would, as in Hamdi, be for the purpose of incapacitating him from returning to the field of battle under our enemy’s command in Afghanistan. If and when the Taliban gives up the fight, such detention would end.

If that’s all you meant to say about al-Marwalah, then I apologize for overreading that portion of your book. I had assumed, however, that al-Marwalah was your lead example of the need to authorize detention on “premises [that] differ fundamentally from those of wartime detentions,” namely, incarcerations “designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” Why did I think this? Because you write that “the reason to detain men like Al-Marwalah . . . [is] that trained ‘Arab fighers’ who ‘don’t know’ if they’re Al Qaeda members pose a prospective menace to American lives.” (my itals)…

I’m tentatively encouraged by Ben’s new articulated test for detainability, which is not everything I’d hope for (especially if the “impracticability of criminal trial” prong is read broadly), but begins to bridge the gap.

Ben’s proposal in his book, however, is much more troubling.

My premise, and that of the judges in al-Marri, is that the detention authority Congress conferred in the AUMF — the maximum authority that the Constitution allows, per Judge Wilkinson — must be viewed as analogous to the traditional wartime detention authority, as translated to the new context of this noninternational conflict against a terrorist organization, and informed by the laws of war.

The detention authority Ben would have Congress authorize, by contrast, is one whose “premises differ fundamentally from those of wartime detentions” (p.162). In what way? Well, a “responsible” Congress “would treat these detentions openly and candidly for what they are: preventive incarcerations designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” According to Ben, this acknowledgement is “a psychological Rubicon we simply need to cross.”

Sorry, but I’m staying on this (constitutional) side of that line…